Opinion
No. 32582.
February 22, 1937.
1. WILLS.
Limitation over contained in provision in will that if any of children to whom testatrix left certain realty should die without children, his or her share in realty should go equally to testatrix' children that were living, was intended to take effect on death of child without issue at any time, whether before or after death of testatrix, and hence children took fee defeasible on their deaths without issue, leaving one or more of the other children surviving them (Code 1930, sec. 2116).
2. WILLS.
Statute providing that contingent limitation in will depending on the dying of any person without issue, or issue of the body, or without children, shall be interpreted as limitation to take effect when such person shall die not having such heir, or issue, or child, has reference to death of devisee or legatee, and in absence of intention to contrary expressly declared on face of will, requires that the limitation over be interpreted as taking effect on death of one of devisees without issue at any time (Code 1930, sec. 2116).
3. WILLS.
Admission of testimony as to expressions of testatrix in reference to her purposes and desires held not reversible error where will as interpreted carried out such purposes and desires.
4. PERPETUITIES.
Will executed in 1929 by testatrix dying in 1929, and providing that if any of children to whom testatrix left certain realty should die without children, his or her share in such realty should go equally to testatrix' children that were living, held not violative of rule against perpetuities or the two donee statute, as respects interest passing on death of one child in 1933 without issue (Code 1906, sec. 2765; Code 1930, sec. 2116).
APPEAL from chancery court of Lee county. HON. JAS. A. FINLEY. Chancellor
Blair Anderson, of Tupelo, and Sohm Humphreys, of Memphis, Tenn., for appellant.
The paragraph of this will which the court construed adversely to appellant is as follows: "If any one of my children die without any children, I want his or her part to go to my children that are living, those living to share equally." It is the contention of appellant that in view of the fact that Mrs. Henderson died prior to her daughter, Mrs. Eskridge, and even though Mrs. Eskridge had no children, she took a fee simple interest in her mother's property. Our contention is based on section 2116 of the Mississippi Code of 1930.
There are two Mississippi cases identical with the case in question, and decide this question in our favor. They are: Nation v. C. N. Co., 115 Miss. 741, 76 So. 642; Sims v. Conger, 39 Miss. 310.
Where the will is explicit, either one way or other, there is no room for the admission of extrinsic evidence.
Gilliam v. Chancellor, 43 Miss. 437.
Courts cannot make by parol testimony a will which the testator did not make.
Welch v. Welch, 147 Miss. 728, 113 So. 197; Wallace v. Wallace, 114 Miss. 591.
The Supreme Court held in the following cases that oral testimony to vary the plain and obvious meaning and intention and language used in a will is not admissible:
Ball v. Phelan, 94 Miss. 293; McKenzie v. Jones, 39 Miss. 230; Dibrell v. Carlisle, 48 Miss. 691; Sudduth v. Sudduth, 60 Miss. 366; Harrin v. Flowers, 91 Miss. 242; Pressgrove v. Comford, 58 Miss. 644.
Mitchell Clayton, of Tupelo, for appellees.
It is the contention of the appellee that the court was correct in admitting this testimony, because the intention of the testatrix was certainly not clear. As evidence of that fact, reasonably good lawyers differ radically as to its meaning and it becomes necessary to have this court determine what is the proper construction. Under such conditions, a correct and proper construction of the will requires a knowledge of the surroundings of the testatrix at the time of the execution of the will, and not only at the exact time of the execution, but at any reasonable time, so long as light is thereby thrown upon the intention of the testatrix.
Schlottman v. Hoffman, 73 Miss. 199; Darrow v. Moore, 163 Miss. 759; Strickland v. Delta Investment Co., 163 Miss. 782.
The appellee also contends that the court construed the will properly even though no evidence should have been admitted.
The true rule with reference to the construction of the phrase "in the event of the death" or "in case of death" is fully set out in the case of Millikin Nat. Bank v. Wilson, 343 Ill. 55, 75 A.L.R. 117; in that case the court said on page 122 of 75 A.L.R.: "The established rule is that, where there is a devise to one person and in case of his death to another, there being no contingent or doubtful circumstances connected with such death, the testator will be presumed to intend a death preceding his own, but if the devise over is to take effect upon the death of the first taker under circumstances which may or may not take place, the devise over, unless controlled by other provisions of the testamentary instrument, will take effect upon the death of the first taker under the circumstances specified, either before or after the death of the testator. . . . The rule that, where there is a devise simpliciter to one person and in case of his death to another, the words refer to death of the devisee in the lifetime of the testator, cannot be applied where the devise to the first taker is not a devise simpliciter, but is only for life, and in such a case the gift over will not fail on account of the devisee for life surviving the testator."
Kolb v. Landes, 277 Ill. 440, 115 N.E. 539.
The phrase `in the event of the death of' may mean death at any time, and circumstances shown may suffice to give the words that import.
Britton v. Thompson, 112 U.S. 526, 28 L.Ed. 599; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Busby v. Rhodes, 58 Miss. 237; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Ball v. Phelan, 94 Miss. 293, 49 So. 956; Sections 2764 and 2778, Code of 1906; Darrow v. Moore, 163 Miss. 705, 142 So. 447.
The contention of appellee is that the words "when such person shall die, etc.," refers not to the death of the testatrix, but to the death of the devisee or legatee under the will of the testatrix. And that in this case the reference is to any one of Mrs. Henderson's children dying without children living at the time of the death of such legatee or devisee.
Jordan v. Roach, 32 Miss. 481; Sims v. Conger, 39 Miss. 231; Busby v. Rhodes, 58 Miss. 237; Halsey v. Gee, 79 Miss. 193, 30 So. 604; Middlesex Banking Co. v. Field, 84 Miss. 646; Ball v. Phelan, 94 Miss. 293, 49 So. 956; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Darrow v. Moore, 163 Miss. 705, 142 So. 447.
As to the provision of the item providing that the real estate shall not be divided unless a majority of the heirs agree in writing, this provision is valid under the following cases:
Crawford v. Solomon, 131 Miss. 792, 95 So. 686; Ford v. Smith, 162 Miss. 138, 137 So. 482; Reid v. Armistead, 151 So. 874.
The court will note that this will does not devise the property to a succession of donees, but it is devised to the four children of the testatrix, as a class. Under the decisions of this court, this does not violate the "two donee statute" which was in force when Mrs. Henderson died in 1929.
This devise comes within the decision in the following cases: Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Henry v. Henderson, 103 Miss. 48, 60 So. 33; Redmond v. Redmond, 104 Miss. 512, 61 So. 552; Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006; Darrow v. Moore, 163 Miss. 705, 142 So. 447; Bullard v. Bullard, 132 Miss. 544, 97 So. 1; Shannon v. Riley, 153 Miss. 815, 121 So. 808.
We respectfully submit that there can be no violation of the "Two Donee Statute" (section 2765 of the Code of 1906) so long as no attempt is made to make a conveyance or devise of a life estate successively in more than two grantees or devisees and that in the instant case the children of Mrs. Henderson took fees, determinable upon the contingency of dying without issue living at the time of their death, upon the happening of which contingency such estate would terminate and the share of such one would vest in the survivor or survivors.
Mrs. M.P. Henderson, a resident of Tupelo, Miss., died in January, 1929, leaving a last will and testament which was duly probated, and which disposed of her real estate in the city of Tupelo in the following manner:
"To my four children, Lillian, Georgia, Daisy and Frank I give my two store houses and lots on which they are located.
"I do not want them sold for a division without the written consent of the majority of the four heirs. I wish them to be rented out and managed as I have managed them.
"If any one of my children die without any children, I want his or her part to go to my children that are living, those living to share equally."
At the time of the execution of this will in the year 1929, Mrs. Henderson had only the four children who are named as devisees in the foregoing paragraphs of the will, and all of them survived their mother. In 1933, one of the devisees, Mrs. Georgia Eskridge, died without issue, leaving a will providing that the income from all her property should be paid to her husband, R.A. Eskridge, during his lifetime, and at his death, devising to her sisters, Mrs. Lillian Dicks and Mrs. Daisy Grissom, a life estate in said property, with remainder to the heirs of their bodies. The will of Mrs. Eskridge was probated and afterwards renounced by her husband, who then, as an heir at law of Mrs. Georgia Eskridge, deceased, filed the original bill of complaint herein, asserting an interest in fee in the real property devised under Mrs. Henderson's will. The complainant, R.A. Eskridge, died testate on the 7th day of April, 1936, and thereafter this cause was revived in the name of the executrix of his will. Upon the hearing of the cause the court held that, under the provision of the will of Mrs. Henderson, upon the death of Mrs. Georgia Eskridge without issue, her interest in the devised property passed to the remaining surviving children of Mrs. Henderson, and from the decree dismissing the bill of complaint this appeal was prosecuted.
It is the contention of the appellant that the limitation over contained in the provision that "if any one of my children die without any children, I want his or her part to go to my children that are living, those living to share equally," took effect only in the event of the death of a devisee during the lifetime of the testatrix, and that since all the children of the testatrix survived her they took an absolute fee-simple title.
As stated in Sims v. Conger, 39 Miss. 231, 77 Am. Dec. 671, it is the settled rule in this state that "in a bequest to A, and, `in case he dies,' or `in the event of his death,' simply, without further words of contingency, over to B, the contingency intended is the death of A before the testator; and hence, if A survived the testator, that he takes absolutely," unless there are other expressions or dispositions in the will justifying a different construction, but the limitation here is not merely "in case of" or "in the event of" death. The limitation over here involved is death of any one of the first takers without children, and there are no other expressions, dispositions, or circumstances indicating an intention that the limitation over should take effect only in case of the death of a devisee before the death of the testatrix. On the contrary, the will as a whole, and the circumstances surrounding its execution, appear to us to indicate an intention that the limitation should take effect upon death of a devisee without issue at any time, whether before or after the death of the testatrix.
Section 2116, Code 1930, provides as follows:
"Every contingent limitation in any conveyance or will made to depend upon the dying of any person without heirs or heirs of the body, or without issue or issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted as a limitation, to take effect when such person shall die not having such heir, or issue, or child, or offspring, or descendant, or other relative, as the case may be, living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the instrument creating it."
The provision of this statute that a contingent limitation in a will depending upon the dying of any person without issue, or issue of the body, or without children, etc., shall be interpreted as a limitation to take effect when such person shall die not having such heir, or issue, or child, has reference to the death of the devisee or legatee, and in the absence of an intention to the contrary expressly or plainly declared on the face of the will, appears to require that the limitation over be interpreted as taking effect on the death of one of the devisees without issue, at any time. Other language of the will, as well as circumstances at the time of its execution, supports the latter construction. At the time of the execution of the will the testatrix was seventy-five years old, and it would hardly be supposed that in providing for the disposition of her property she contemplated only the death of her children before her own. That the testatrix did not intend that the devise over should take effect only in case of death of the devisees before the death of the testatrix is further strongly indicated by her expressed wish in the will that the devised property should not be sold for division without the written consent of a majority of her four heirs, and that these heirs should rent and manage the property as she had done. These were directions to her children who, if living, would become her heirs at law at her death, as to the management of her property after her death, and indicates an expectation and intention that the limitation over should take effect upon the death of any one of the devisees without issue, at any time, whether before or after the death of the testatrix. In the case of Britton v. Thornton, 112 U.S. 526, 528, 5 S.Ct. 291, 294, 28 L.Ed. 816, the rule is recognized that when a devise is made to one person in fee and "in case of his death" to another in fee, the courts should interpret the devise over as referring only to death in the testatrix' lifetime, but it is there said that: "When the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator."
We conclude, therefore, that under the will the four named devisees took a fee defeasible on their deaths without issue, leaving one or more of the other devisees surviving them. Armstrong v. Thomas, 112 Miss. 272, 72 So. 1006. We think this conclusion necessarily follows without reference to evidence that was offered as to expressions of the testatrix in reference to her purpose and desires, and as to the circumstances under which the will was executed, and, consequently, assignments based upon the admission of this testimony present no reversible error.
Appellant assigns as error the failure of the court to hold that the will violates the rule against perpetuities, but she presents no argument in support of this view. Insofar as they affect the interest that passed upon the death of Mrs. Eskridge without issue, there can be no violation of the rule against perpetuities or of the two donee statute, section 2765, Code 1906, which was in force at the time of the death of the testatrix. The decree of the court below will, therefore, be affirmed.
Affirmed.